USA v. Toborus Cunningham

Filing

Opinion issued by court as to Appellant Toborus Dontay Cunningham. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 12/14/2015

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-15603
Non-Argument Calendar
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D.C. Docket No. 8:14-cr-00133-SDM-EAJ-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOBORUS DONTAY CUNNINGHAM,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
________________________
(December 14, 2015)
Before WILSON, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:

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Toborus Dontay Cunningham appeals his convictions for possession with
intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B)(ii), and possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). Cunningham argues:
(1) the district court erred by denying his motion to suppress evidence found in his
home; (2) the evidence presented at trial was insufficient to convict him of
possession of a firearm in furtherance of a drug trafficking crime; and (3) the
district court abused its discretion in admitting uncharged weapons and
ammunition into evidence. We hold the district court did not commit reversible
error and the evidence was sufficient to convict Cunningham. Accordingly, we
affirm.
BACKGROUND
In November 2013, a confidential informant reported to police that
Cunningham was engaging in drug trafficking. The informant told police that
Cunningham was one of “the biggest drug dealers in town” and was “supplying the
majority of the drug dealers” in the area. Subsequently, the informant purchased
drugs from Cunningham on two occasions. The police recorded both purchases.
Following these purchases, the police obtained a search warrant for Cunningham’s
home and workplace. The warrant was supported by an affidavit of two law
enforcement officials. The officials described the informant’s reports and drug
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purchases from Cunningham. They also stated that they have been involved with
hundreds of drug investigations and, based on this experience, they know drug
traffickers often store various types of evidence of drug activity, such as currency
and records of drug transactions, at their homes.
During their search of Cunningham’s home, the police found a loaded
handgun and two bags of cocaine in plain sight in Cunningham’s bedroom. The
police also found a 12-gauge shotgun, semiautomatic assault rifle, 170 rounds of
ammunition for the rifle, a brick of cocaine, a white powder cutting agent that can
be used in preparing cocaine for sale, and $25,000 in cash in the bedroom. Finally,
in Cunningham’s kitchen, the police discovered various items used to prepare
drugs for sale.
Cunningham was indicted on one count of possession with intent to
distribute 500 grams or more of cocaine and one count of possession of a
firearm—the handgun found in his bedroom—in furtherance of a drug trafficking
crime. Prior to trial, Cunningham moved to suppress all evidence found during the
search of his home. The district court denied the motion. At trial, the Government
offered uncharged weapons and ammunition found at Cunningham’s home and
workplace into evidence. Cunningham objected to this evidence, but the court
overruled his objections.

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DISCUSSION
I.

The District Court Did Not Err in Denying Cunningham’s Motion to
Suppress.
Cunningham argues the police’s search of his home was unlawful and,

therefore, the district court should have suppressed the evidence obtained from the
search. Specifically, he asserts the police’s search warrant lacked probable cause
because it failed to establish an adequate connection between his home and illegal
activity.1
We give “great deference” to a district court’s determination of probable
cause. United States v. Brundidge, 170 F.3d 1350, 1352 (11th Cir. 1999) (per
curiam) (internal quotation marks omitted). “Probable cause to support a search
warrant exists when the totality of the circumstances allow a conclusion that there
is a fair probability of finding contraband or evidence at a particular location.” Id.
“A police officer’s expectation, based on prior experience and the specific
circumstances of the alleged crime, that evidence is likely to be found in a
suspect’s residence satisfies probable cause.” United States v. Joseph, 709 F.3d
1082, 1100 (11th Cir. 2013) (internal quotation marks omitted).
Under Joseph, probable cause supported the police’s search warrant for
Cunningham’s home. In Joseph, a physician was charged with illegally dispensing

1

In denying Cunningham’s motion to suppress, the district court found probable cause
supported the warrant.
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prescription drugs at his clinic. After an initial investigation, the police executed a
search warrant of the physician’s home and discovered evidence of the physician’s
drug activity. An affidavit of a law enforcement official supported the search
warrant. The official attested that he had conducted or assisted with over 1,000
drug investigations and, based on his experience, drug dealers often store proceeds
and records from their transactions in their homes. We held that “[t]his experience,
along with evidence that [the physician] violated [drug laws], provided probable
cause to search [the physician’s] home. Id. As in Joseph, the police had evidence
that Cunningham was involved in drug trafficking and law enforcement officials
attested that, based on their significant experience with drug investigations, drug
traffickers often store evidence of their crimes in their homes. Thus, the police’s
search warrant was valid under Joseph,2 and the district court did not err in
denying Cunningham’s motion to suppress.
II.

Sufficient Evidence Supported Cunningham’s Conviction.
Cunningham next claims there was insufficient evidence to support his

conviction under 18 U.S.C. § 924(c)(1)(A) for possessing a firearm in furtherance
of drug trafficking. He argues the Government failed to show that the handgun
found in his home was used to “further” drug trafficking.
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Cunningham attempts to distinguish Joseph from his case by asserting the defendant in
Joseph was a major drug distributor while he was, at most, a low-level street drug dealer. This
argument is without merit given the police’s investigation revealed Cunningham was one of “the
biggest drug dealers in town.”
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We review the sufficiency of the evidence de novo, viewing the evidence “in
the light most favorable to the government” and “accepting all reasonable
inferences” in favor of the verdict. United States v. Calhoon, 97 F.3d 518, 523
(11th Cir. 1996). The evidence will be sufficient to support a conviction if a
reasonable trier of fact could find that the evidence established guilt beyond a
reasonable doubt. Id.
In order to prove the “furtherance” element of 18 U.S.C. § 924(c)(1)(A), the
government must show “some nexus” between the gun and the drug trafficking
offense. United States v. Timmons, 283 F.3d 1246, 1253 (11th Cir. 2002). This
nexus can be established by: “the type of drug activity that is being conducted,
accessibility of the firearm, the type of the weapon, . . . whether the gun is loaded,
proximity to the drugs or drug profits, and the time and circumstances under which
the gun is found.” Id. (internal quotation marks omitted). Here, the police found
the handgun at issue in the same room as other firearms, ammunition, a significant
quantity of cocaine, $25,000 in cash, and supplies that can be used in preparing
cocaine for sale. In addition, the handgun was loaded. Given the proximity of
these drug-related pieces of evidence to the handgun, a reasonable trier of fact
could find that the Government established the nexus required for the
“furtherance” element. See id. (holding sufficient nexus existed where firearms
were found in the same apartment as crack cocaine, gun ammunition, and a
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bulletproof vest); United States v. Lopez-Garcia, 565 F.3d 1306, 1322 (11th Cir.
2009) (“The nexus between the gun and the drug trafficking here is plainly
established by, for example, the accessibility of the firearm to [defendant], and the
proximity of the gun to the drugs and the drug profits.”). Therefore, sufficient
evidence supported Cunningham’s conviction.
III.

The District Court Did Not Abuse its Discretion in Admitting
Uncharged Firearms and Ammunition into Evidence.
Finally, Cunningham argues the district court erred by admitting uncharged

firearms and ammunition into evidence. He asserts: (1) this evidence was
inadmissible under Federal Rule of Evidence 402 because it was irrelevant; and (2)
even if it was relevant, the district court should have excluded it under Federal
Rule of Evidence 403 because its probative value was outweighed by a danger of
unfair prejudice.
“We review the district court’s evidentiary rulings for abuse of discretion.”
United States v. McDowell, 250 F.3d 1354, 1362 (11th Cir. 2001). District courts
may not admit irrelevant evidence. Fed. R. Evid. 402. But, they “may exclude
relevant evidence if its probative value is substantially outweighed by a danger of .
. . unfair prejudice.” Fed. R. Evid. 403.
Cunningham’s “relevance” and “unfair prejudice” arguments fail. First,
firearms and ammunition are “tools of the trade” for drug dealers and, therefore,
this type of evidence was relevant to Cunningham’s involvement in drug activity.
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See United States v. Terzado-Madruga, 897 F.2d 1099, 1120 (11th Cir. 1990);
United States v. Rodriguez, 765 F.2d 1546, 1562 (11th Cir. 1985). Second,
considering Rodriguez, “[w]e cannot say the district court clearly abused its
discretion in” finding the firearms and ammunition did not implicate Federal Rule
of Evidence 403. See Rodriguez, 765 F.2d at 1562. In Rodriguez, the defendant
was tried for a crime involving drug distribution and the district court allowed
uncharged firearms and a silencer into evidence. See id. at 1561–62. The
defendant argued the district court abused its discretion in admitting these items
because they were unfairly prejudicial. However, we rejected this argument,
finding no reversible error. Id. at 1562. The facts here are similar to Rodriguez:
Cunningham was tried for a drug distribution crime and the district court admitted
uncharged firearms and related items into evidence. Thus, applying Rodriguez, we
find no reversible error.
AFFIRMED.

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